Ex parte Benito Vasquez DIAZ
No. 72276
Court of Criminal Appeals of Texas, En Banc
Jan. 21, 1998
959 S.W.2d 213
I also point out that based upon the differences in the procedures of jury selection in capital death penalty vs. non-death penalty trials, this type of error may involve different harmful effects. In death penalty trials, jury selection is done on an individual basis with individual questioning аnd peremptory and causal challenges being exercised one veniremember at a time. See
IV. CONCLUSION
Because a majority of this Court continues to encourage, enforce, and reward ignorance and lack of knowledge in the jury selection process, I respectfully dissent.
BAIRD and PRICE, JJ., join.
Benito Vasquez Diaz, Hunstville, pro se.
Ross L. Jones, Dist. Atty., Coleman, Matthew Paul, State‘s Atty., Austin, for State.
OPINION
HOLLAND, Judge, delivered the opinion of the Court, in which McCORMICK, Presiding Judge, and KELLER, PRICE and WOMACK, Judges, joined.
Applicant was arrested for possession of cocaine and methamphetamine on June 22, 1993. On July 26, 1993, the Texas Comptroller of Public Accounts sent applicant a “Notice of Tax Due” of $27,000 plus a $2,720 penalty explaining that the failure to pay would result in additional penalties.
On July 27, 1993, the comptroller sent a freeze notice to applicant‘s bank explaining the law prohibited the bank from transferring or disposing of applicant‘s assets in its possession.
On August 3, 1993, applicant filed a request for a redetermination hearing with the Comptroller‘s office. Applicant stated that he had not “possessed, purchased, acquired, imported, manufactured, or produced a taxable substance on which a tax has not been paid under Chapter 159, Texas Tax Code.” The case was presented on written submissions. On May 4, 1994, applicant pled guilty to the criminal offense of possession of cocaine and was sentenced. On February 22, 1995, Administrative Law Judge Ben Sarrett rendered his decision finding that on June 22, 1993, applicant possessed 106 grams of cocaine, 29 grams of methamphetamine, 2 grams of a substance containing methamphetamine, and .20 grams of marihuana. He found that no controlled substance tax payment certificates were affixed to the controlled substances or their containers, and applicant did not possess the tax certificates on his person. The judge concluded that the tax imposed by Chapter 159 should be assessed in order to conform to the weight and character of the substances applicant was found to have possessed.
This Court did not resolve in Stennett v. State when “punishment” occurs in a tax proceeding causing jeopardy to attach. This question was answered in Ex parte Ward, Nos., 420-96, 421-96, S.W.2d — (Tex. Crim. App. January 21, 1998).3 After examining the facts and the holding in Kurth Ranch, this Court concluded that the Supreme Court did not hold that jeopardy attached at the initial “assessment” of the tax on controlled substances since the tax assessmеnts in that case were issued prior to the defendant‘s criminal proceedings. Ex parte Ward, slip op. at 23-25, at —. Rather, it was “the State of Montana‘s attempt to actually impose or collect the tax after the defendants had pleaded guilty and were punished which placed the defendants at risk of a second punishment causing jeopardy to bar the state‘s attempt to collect the tax.” Ex parte Ward, slip op. at 24, at — [emphasis in original]. We recognized that despite the factual differences of Ex parte Ward and Kurth Ranch, the reasoning in Kurth Ranch could be applied in a factually ‘reversed’ case.4 In Kurth Ranch it was the risk of subjecting the defendants to the possibility of a second impermissible punishment that invoked the Double Jeopardy Clаuse‘s protection against multiple punishments, thus we concluded there must be a first punishment in the defendant‘s tax proceeding to bar his criminal prosecution on double jeopardy grounds. Ex parte Ward, slip op. at 25, at —. After examining whether a tax assessment is a final judgment, this Court concluded that “the comptroller‘s issuanсe of a tax determination has the same effect for jeopardy purposes as the government‘s filing of a claim in a civil forfeiture or the return of an indictment in a criminal prosecution.” Id., slip op. at 25-26, —.
We held a tax assessment, as evidenced by a tax determination notice, is not “punishment” because it is а formal pleading or determination of civil liability, not a final adjudication of guilt.5
In this case, although applicant obtained a final judgment of tax liability after requesting a redetermination hearing, the judgment was not entered until February 22, 1995. Applicant, however, was previously “punished” on May 5, 1994, when he pled guilty to the criminal offense of possession of cocaine and was sentenced to 15 years in prison. Consequently, jeopardy in the tax proceeding occurred nine months later and
The relief for which applicant prays is DENIED.
MEYERS, J., dissents for reasons stated in his dissenting opinion in Ex parte Ward, Nos. 420-96, 421-96, S.W.2d —, 1998 WL 18063 (Tex. Crim. App. January 21, 1998).
BAIRD and OVERSTREET, JJ., join.
MANSFIELD, Judge, concurring.
Applicant pled guilty to рossession of cocaine and was sentenced to fifteen years imprisonment and a fine of $5000. The date of his arrest was June 22, 1993 and the date of his conviction was May 5, 1994.
In July of 1993, applicant received a notice from the Texas Comptroller of Public Accounts that tax was due under
Also, in July of 1993 the Comptroller sent a notice to applicant‘s bank ordering the bank to freeze any assets of applicаnt it had in its possession. The bank placed a hold on applicant‘s certificate of deposit as well as $3347.46 applicant had on deposit in his accounts. Applicant contested the amount of tax due and, after a hearing, the administrative law judge ruled, on February 22, 1995, the amount of tax due оn the cocaine was $21,200.
This Court has held the Texas controlled substance tax is a punishment as that term is defined by the double jeopardy clause of the Fifth Amendment to the United States Constitution. Stennett v. State, 941 S.W.2d 914 (Tex. Crim. App. 1996). See also, Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994). Therefore, the Texas controlled substances tax cannot be imposed in a separate procеeding from that in which the individual is placed in jeopardy of criminal punishment for possession or sale of the same controlled substances against which imposition of the tax is sought.
In Stennett, however, although finding the Texas controlled substances tax in general punishment, we did not resolve the issue of when it becomes a “punishment” with respect to an individual so as to implicate his double jeopardy rights. Left unanswered was whether merely sending a notice by the Comptroller of tax due to the individual—absent any action by the Comptroller to collect the tax—is “punishment” thus barring any subsequent criminal prosecution for pоssession or delivery of the same controlled substance on which the tax is alleged by the notice to be due. Stennett (Mansfield, J., dissenting), supra, at 922.
In Ex parte Chappell, 959 S.W.2d 627 (Tex. Crim. App. 1998), applicant was indicted for aggravated delivery of cocaine. Subsequently, applicant received a notice from the Comptroller for tax due of $11,200 on the same cocaine that gave rise to the indictment. He then pled guilty to the indictment and was assessed a prison sentence and a fine. The Comptroller then dismissed the tax assessment made against applicant.
We held that the Comptroller‘s mere notice indicating the amount of the drug tax due from appliсant was not “punishment” because “punishment” consists in the taking of “life, liberty or property.” Chappell, at 629. See also United States v. Sanchez-Escareno, 950 F.2d 193, 201 (5th Cir. 1991), cert. denied, 506 U.S. 841, 113 S. Ct. 123, 121 L. Ed. 2d 78 (1992). We found significant the Comptroller had taken no action to collect the tax (by obtaining a judgment to recover the tax, or by seizing or freezing property of applicant to force payment of the tax, or by levying or otherwise encumbering assets of the applicant to recover the tax). Nor was there a final determination through a hearing before an administrative law judge of tax liability. Chappell, at 629. See People v. Litchfield, 902 P.2d 921, 925 (Colo. App. 1995),
In the present case, the Comptroller‘s actions went far beyond “mere assessment,” and constitute collеction, or attempted collection, of the controlled substance tax. These actions included the filing of a tax lien as well as sending a freeze notice to applicant‘s bank. These actions, by adversely affecting his ability to sell or otherwise use his property, constituted at least а temporary deprivation of property and is a form of “punishment.” Subsequently, an administrative hearing was held, after which it was finally determined applicant owed controlled substance tax under
Accordingly, I must once again state that mere sending of a notice of tax due on controlled substances—absent any action to collect the tax—by the Comptroller is not “punishment” implicating the double jeopardy clause. I agree the Court‘s disposition of this matter as it is clear the actions taken by the Comptroller, described above, to collect the tax resulted in applicant‘s bеing “punished” as he was deprived of his right to the unencumbered use of his property and thus those actions constituted a “taking” of his property.
However, this particular “punishment” did not implicate applicant‘s double jeopardy rights until after he was convicted of possession of the cocaine that subsequently resulted in final imposition of the drug tax. In other words, it was subsequent to his cocaine conviction that his liability for the drug tax became final, after the administrative hearing and he only then faced the permanent loss of his assets. Therefore, while the double jeopardy clause would prevent thе Comptroller from actual collection of the drug tax he determined to be due, it does not affect applicant‘s conviction for possession of the cocaine that resulted in the finding of tax due.
With these comments I join the opinion of the Court.
BENITO VASQUEZ DIAZ
PRO SE